Align challenges verdict in Ormco lawsuit

Jul 22, 2009

Align Technology says the recent ruling in a patent lawsuit brought against the company by Ormco does not preclude Align from selling its Invisalign system.

The company also believes the facts and the law do not support the jury's findings of infringement and validity, and therefore has filed a motion for judgment as a matter of law on all issues seeking to set aside the jury's verdict of liability, Align said in a press release.

The court has set a hearing on Align's motion for August 3, 2009.

As previously disclosed, on June 26, 2009, a jury delivered a verdict against Align. Ormco alleged that Align infringed claims of Ormco's U.S. Patent No. 6,616,444. Align claimed noninfringement, invalidity, unenforceability of the patent, and equitable defenses. The jury found the claims asserted by Ormco in the patent to be infringed and valid. The jury only determined liability. Any monetary damages will be determined in a later trial, which has not been scheduled but would likely occur in early 2010, according to Align.

On July 13, Ormco filed a motion for permanent injunction against Align, seeking to enjoin the sale of the Invisalign system through the January 2010 expiration of its patent and other injunctive relief, such as the destruction of all material, including software, created by Align from September 2003 to the present, the discontinuation of certification programs, the decertification of doctors certified from September 2003 to the present, and the destruction of sales representatives' records developed during this time period. The court has scheduled a hearing on the motion for permanent injunction for August 17, 2009.

Ormco seeks unusual injunctive relief that Align believes is "unwarranted and not supported by the law or facts of the case." Align contends that an injunction would cause irreparable harm to the company, its employees, and those doctors who include Invisalign as a large part of their practice, and would interrupt patient treatment and services currently under way.

In addition, any harm Ormco claims to have suffered would be sufficiently compensated by money damage. "For these reasons, we strongly believe that Ormco's motion for a permanent injunction should be denied and we will vigorously oppose the motion," Align said. In the event that the court grants a permanent injunction, Align will appeal to the Federal Circuit Court of Appeals and seek to stay the injunction.

Align has had ongoing patent litigation with Ormco since 2003 when Ormco sued Align for patent infringement and Align won. Ormco appealed that decision, and in August 2007 the Federal Circuit Court of Appeals ruled that 86 of Ormco's 92 claims (related to 6,616,432, '243, '861, and '444 patents) were invalid and not infringed by Align. Ormco pursued the six remaining claims, which relate generally to a process of gathering and organizing tooth data, in the current lawsuit against Align.